The fact that access to justice is a problem is abundantly apparent to anyone involved in the legal system, be it judges or lawyers, plaintiffs or defendants or even common observers. Courts, Law Societies, Bar Associations and special interest groups among others are all trying to improve access to justice. Unfortunately, it is not a problem easily remedied.
Since starting to build my estate related practice, one of the common questions I get asked is how to organize assets to avoid probate fees or estate tax. The question has often come from the adult children of a parent that are wondering if mom or dad are being smart in their estate planning, as it is often these same children and their siblings that are the beneficiaries of their parent’s estate.
The cases of Skunk v. Ketash, released on March 22, 2016, and Fosker v. Thorpe, released in 2004, are an interesting example of two judges finding their way to opposite conclusions on similar facts. In both cases, the plaintiff was injured in an accident which occurred during an alleged theft of the plaintiff’s own insured vehicle. In both cases, liability coverage was unavailable to the alleged thief. In both cases, the insurer of the vehicle argued that uninsured motorist protection was not available to the plaintiff because the stolen vehicle was insured, not uninsured. Interestingly, as indicated, the outcome of the two cases was different.
When a plaintiff is successful in a lawsuit, they are generally entitled to prejudgment interest (PJI) on their damage award. Prejudgment interest is awarded on any damages incurred between the date the cause of action arose (or written notice of the action was given, if related to an MVA) to the date of the order for payment of money. The Ontario Court of Appeal has written that “[a]wards of pre-judgment interest are designed to recognize the impact of inflation and to provide relief to a successful litigant against the declining value of money between the date of entitlement to damages and the time when damages are awarded.”1
In November, 2015 the Supreme Court of Canada ruled that a section of the Highway 407 Act was unconstitutional.
The 407 Act allowed the 407 ETR Concession Company to suspend the vehicle permits of people with unpaid toll debts, even after they had declared bankruptcy.
The 407 Company appealed to the Supreme Court after the Ontario Court of Appeal struck down the vehicle permit suspension powers in the 407 Act in December, 2013.
In Fonseca v. Hansen et al, released April 26, 2016, the Court of Appeal has provided further clarification on what type of communication is appropriate between counsel and an expert witness. One of the questions on appeal was whether the trial judge erred by failing to instruct the jury that pre-trial communication between the appellant’s counsel and an expert witness was not a proper basis on which to reject the expert’s testimony.
In Iannarella v. Corbett 2015 ONCA 110, released February 17, 2015, the Court of Appeal has bolstered the right of plaintiffs to obtain surveillance particulars, but in doing so it seems to have unnecessarily created a serious problem: it held that a party is obliged by a combination of rules 30.06 and 30.07(b) to provide an updated affidavit of documents listing any surveillance reports (and therefore presumably any privileged documents) created after the party’s affidavit of documents has been sworn. Lawyers may be kept busy preparing updated affidavits of documents.
The Ontario Court of Appeal recently mandated a small adjustment to the standard jury charge in rear-end motor vehicle accidents. The court also strongly confirmed that when one car runs into another from behind, the driver of the rear car has the onus to satisfy the court that the collision did not occur as a result of his negligence.
We are very pleased to announce that effective May 1, 2015 Charles F. Ruttan has joined the firm as counsel, and will continue his practice in the areas of estate litigation (including wills and estates) and construction liens. With his 40 years of experience as a lawyer, Chuck adds immensely to our depth in these areas. Chuck is well known for his thoroughness and for his practical approach to resolving disputes. He is dedicated to his clients and, in turn, they seem to be very committed to him. Chuck has been a resident of Barrie and very active in our community since 1976. (See his bio here.) Welcome, Chuck! We’re very happy to have you as part of our team.
Chuck can be reached directly at firstname.lastname@example.org.
The insurance contract is one of uberrimae fide or of the utmost good faith, which has, historically, set it apart from other commercial contracts. The insurance contract gives rise to a duty of good faith on behalf of both parties to the contract to be candid or honest. The duty of good faith initially arose because of the insurer’s reliance on information that was only within the knowledge of the insured and, therefore, was not subject to verification. Until the recent Supreme Court of Canada decision of Bhasin v. Hrynew, 2014 SCC 71, generally speaking the duty of good faith was not imposed upon parties to non-insurance commercial contracts, except perhaps employment and franchise contracts, or it was not imposed in a consistent or coherent manner. The courts have generally shied away from imposing unwritten terms such as the duty of good faith into the contracts governing commercial relations on the basis to do so would undermine the freedom to contract and would open the doors for the courts to interfere with the express terms of contracts. However, the Supreme Court of Canada endorsed in Bhasin v. Hrynew an organizing principle of good faith performance of contracts. This means there is now an organizing principle of good faith that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily¹.